Written by James WaNjeri-Advocate
The Constitution of Kenya envisages a society in which the culture of constitutionalism and the rule of law is the norm rather than the exception. Constitutionalism deals with how the constitution is implemented, accepted, responded to, and incorporated into society. This expectation is also placed on employers and how they conduct workplace affairs since Article 41 of the constitution establishes the right to fair labor practices. The employment relationship is a dynamic one that can often be subject to the preferences of the parties to it. Some of these preferences may be harmful or illegal in nature, even though they may seem acceptable or rational. To curb the use of harmful practices in employment, Kenya has a robust set of laws that govern how employment disputes in the workplace are to be resolved. Courts will often be invited to determine whether the procedure used was proper and legal.
Today we highlight a recent decision in CIVIL APPEAL NO. 64 OF 2020 P.N. MASHRU LTD vs OUMA OJENGE where the Court of Appeal was invited to determine whether the use of witchcraft in resolving employment disputes is an acceptable method. This matter was an appeal from the decision of the High Court in Mombasa where the Court’s judgment was issued in favor of the employee. The Employer filed this appeal seeking to set aside that judgment. It was the employee’s claim that he had been employed from December, 2011 to 15th May, 2014, as a spray painter earning Kshs 16,000/- per month. He claimed that, though he was entitled to an additional sum on salary as house allowance, the same was never paid. He was dismissed on the allegations that he had stolen a computer box. According to him, this allegation was based on the results of the rituals performed by a witch doctor whose services had been retained by his Employer. As a result, he was arrested and detained at the Police Station overnight. The following day, he was released from custody but was dismissed by the employer. After that, he sought legal assistance and upon the intervention of his legal team, the employer made an offer to him for his return to work. However, the employee declined the offer and instead opted to be paid his terminal dues. The High Court assessed the employee’s compensation for unfair termination to the equivalent of 4 months’ salary. The employee also demanded for punitive damages for being subjected to the use of witchcraft as a mode of investigation by the employer. Punitive damages are awarded as punishment for the defendant’s serious misconduct and as a means of deterring the defendant and others from such behavior. The High Court held that the resort by the employer to the use of witchcraft violated the employee’s rights to fair labour practices under Article 41 of the Constitution as well as Sections 41, 43 and 45 of the Employment Act and was hence repugnant to justice and morality which was inconsistent with the Constitution and the law. In respect of punitive damages, the Court found, based on the mode of investigation adopted by the Appellant, the claim was merited and he awarded the Respondent Kshs 450,000.00 in respect thereof. In the appeal, the employer challenged the finding and argued that the award given was extremely high and oppressive on the Appellant. For a start, it is important to note that the use of witchcraft in Kenya is a criminal offence. Section 7 of the Witchcraft Act provides as follows; – Any person who employs or solicits any other person to name or indicate by the use of any non-natural means any person as the perpetrator of any alleged crime or other act— complained of shall be guilty of an offence and liable to a fine not exceeding five hundred shillings or to imprisonment for a term not exceeding five years.
The Court began by finding that in Kenya punitive or exemplary damages are awardable only under two circumstances, namely (i) where there is oppressive, arbitrary, or unconstitutional action by the servants of the government; and (ii) where the defendant’s action was calculated to procure him some benefit, not necessarily financial, at the expense of the plaintiff. The third scenario is, of course, where an Act of Parliament authorizes such damages. The employee argued that the actions of the employer in procuring a witchdoctor to investigate the loss of items at the workplace not only succeeded in instilling fear in the employees but also resulted in the exit from employment of some of the Employees and, by extension affording a benefit to the employer due to the said exit. The Court of Appeal while finding fault with the employer’s approach, expressed itself as follows “…In this case, we must ask ourselves what the Appellant(employer) intended to achieve by resorting to the unorthodox method of investigation by engaging the services of a witchdoctor. Such unconventional and unlawful action undertaken by a sophisticated entity aptly described by the Learned Judge as “not a gullible simpleton, a village outfit, but…a major enterprise, resident in the resort city of Mombasa” must have been intended to achieve more than just vindicate a course of justice. In those circumstances we agree that the Appellant intended to derive some benefit from its action by resorting to “wizardry” as the Learned Judge termed its action.” With regard to the invitation to reduce the punitive damages, the Court of Appeal held that “…In this case there is no doubt that the respondent (employee) was subjected to the indignity of undergoing rituals in the hands of a witch doctor. The Appellant’s (employer’s) action was not only criminal but also demeaning and contrary to Article 28 of the Constitution. In the circumstances, we find no reason to interfere with the award.” This is a classic case of the use of solutions that offend both the law and societal expectations. One sure way employers can ensure that such methods are never used is to pursue a workplace culture that upholds the law and the values outlined in the constitution of Kenya. When an organization’s values are clear, decision-making becomes a very easy and straightforward process. Where unorthodox methods like these are used, the Court has the power to issue punitive damages that will occasion great financial loss to the employer. Following the law is the best way for employers to protect their reputation and the surest defence when confronted with court action.
